In a case brought by the EEOC, the United States District Court for the Northern District of California recently ruled that clothing retailer Abercrombie & Fitch had discriminated against a Muslim employee in violation of Title VII of the Civil Rights Act of 1964 when it failed to accommodate her religious headscarf, or hijab. The court rejected Abercrombie’s defense that accommodating the employee would have imposed an undue hardship under its “Look Policy.”
The case involved a former Abercrombie employee named Umme-Hani Khan. Khan is Muslim and believes that her religion requires her to wear a headscarf when in public or in the presence of men who are not immediate family members. She worked at one of Abercrombie’s Hollister stores in California from October 2009 until her termination in February 2010. Throughout that time, Khan wore a headscarf while at work, with the permission of her supervisors.
The headscarf violated Abercrombie’s Look Policy, which provides guidelines for employees’ appearance and clothing while at work. Among other requirements, the Look Policy prohibited all store employees from wearing headwear. Although Khan’s supervisors permitted her to wear a headscarf so long as it matched company colors, a district manager visiting her store noticed that she was not in compliance with the Look Policy. The district manager contacted a human resources manager, who told Khan that her headscarf violated the Look Policy and asked her to take it off. Khan replied that her religious beliefs precluded her from taking the headscarf off. Abercrombie suspended Khan, then terminated her employment for violating the Look Policy. Abercrombie later offered to reinstate Khan with permission to wear her headscarf at work, but she declined the offer.
The EEOC sued Abercrombie under Title VII for failing to accommodate Khan’s religious beliefs, and Khan intervened. Abercrombie did not dispute that the plaintiffs could establish a prima facie case of failure to accommodate, but it asserted several affirmative defenses, including that it could not reasonably accommodate Khan without undue hardship. In support of its undue hardship defense, Abercrombie offered numerous employees’ testimony that compliance with the Look Policy is key to Abercrombie’s success and that deviations from the Look Policy negatively affect Abercrombie’s brand. The court dismissed such testimony as “unsubstantiated opinion” and noted that Khan had worn the headscarf at work for four months without any complaints, disruption, or decline in sales. The court also found that Abercrombie’s claim of hardship was undercut by the company’s having granted many other exceptions to the Look Policy, including more than 16 for headscarves since 2006. The court granted the plaintiffs’ motion for summary judgment as to liability on their claims that Abercrombie had failed to accommodate Khan’s religious beliefs. A trial on damages and injunctive relief is scheduled for later this month.
This case carries several lessons for employers. First, employers should engage in good faith in an interactive process with employees who request accommodations, even if they believe the process is not likely to succeed. (In Khan’s case, the court noted that Abercrombie had not initiated any good faith efforts to accommodate her, and that the HR manager had decided to terminate Khan even before they had discussed the headscarf issue.) Second, employers should make sure that their policies are both reasonable and consistently applied. (In Khan’s case, the court emphasized Abercrombie’s willingness to accommodate other employees’ deviations from the Look Policy and its post-termination offer to reinstate Khan with permission to wear a headscarf, both of which seemed to contradict its undue hardship defense and to make that defense appear unreasonable.)